Should Scalia and Thomas Be Retroactively Recused From Citizens United?

I just participated in a press conference (with Stanford Professor Deborah Rhode) dealing with Common Cause’s letter (below) asking the Justice Department to look into alleged conflicts of interest related to Justices Scalia and Thomas in the Citizens United case. Common Cause identified extremely serious issues related to the participation of Scalia and Thomas in events organized by Koch Industries CEO Charles Koch as well as Ginny Thomas’ involvement in Liberty Central.

Common Cause isolates the participation of both justices at these Koch events, which are advertised as seeking “to change the balance of power in Congress.” They are mentioned in promotional material with such conservative celebrities as Glenn Beck and Rush Limbaugh.

During the press conference, Common Cause confirmed that, in the separate years that they each attended the program, both listed their expenses as being paid for by the Federalist Society (and made no mention of the Koch brothers). They also detail the failure of Thomas to disclose the financial interests of his wife as well as the benefit that she received from the Citizen United decision.

Ben Smith has written that he believes that the timeline of Common Cause is erroneous on one issue: he says that his research shows that Scalia attended the Koch event shortly before the Citizens United case was filed and Thomas participated shortly after it was filed. That is clearly material to any ethical review and Smith’s research is important to consider. However, it does not address all of the issues raised in the letter or the more general problem with a lack of enforceable ethical rules for justices. Moreover, both justices should have been aware of the highly ideological and political tenor of these programs. I believe attending such meetings is, to use Thomas’ word for critics of the Court, “irresponsible.” How important do you believe the timing is in evaluating the ethical issues raised by the letter?

While the Judicial Code of Conduct, Canon 4 of the Judicial Code of Conduct states in part that a judge should not take part in any activities that “reflect adversely on the judge’s impartiality.” This canon specifically warns that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.” Canon 5 states that a “judge should not . . . make speeches for a political organization . . . or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate . . . A Judge should not engage in any other political activity.”

“Political organization” includes “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.”

Justices are subject to the conflict rules contained in 28 U.S.C. §455(a) which requires judges and justices to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b) includes various categories for recusal, including:

(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material
witness in the proceeding.

The problem is that Congress failed to include an enforcement provision in the law. The result is that it has been viewed at best as aspirational and at worse a nonsensical. Without any enforcement, the conflict controversies are left to the individual justice. This has created a situation that is anathema in a legal system: rules are are left to the accused to resolve with no appeal.

I honestly do not believe that either Thomas or Scalia were influenced by these events. Moreover, one can disagree with their participation and still not believe that the allegations support a recusal — let alone a retroactive recusal. My main interest in today’s conference call is to raise the continuing problem of a lack of binding rules and procedures for such conflict allegations.

Participation in events like the Koch programs show a lack of personal restraint and judgment. The increasing number of these controversies show the need for ethical reforms that bring the Supreme Court in line with the lower courts.

Scalia has made clear that he views these controversies as a problem with the media and critics — not him. In his conflicts memorandum following the dispute over the Cheney duck hunt, Scalia stated “[t]he people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.” For his part, Thomas has denounced criticism of the individual justices as “irresponsible.”

The Common Case letter asks for a finding of a conflict that would lead to the Court considering a request to vacate the decision. That is doubtful. First, civil libertarians have been trying for years to get Attorney General Holder to fulfill our treaty obligations to investigate torture allegations. If he is unwilling to enforce the Geneva Conventions, he is not going to enforce these matters of judicial ethics. Second, the Court itself does a poor job in policing its members or dealing with its past failings. When asked to reconsider United States v. Reynolds when documents proved the Air Force had lied to the Court, its members simply refused.

That frank assessment does not undermine the importance of this letter. The letter highlights the need for greater ethical standards and procedures for justices. These controversies show that they cannot or will not police their own members. These controversies do great damage to the integrity of the Court and the judiciary generally.

58 thoughts on “Should Scalia and Thomas Be Retroactively Recused From Citizens United?”

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[…] Just a little bit on Scalia history, he was appointed by the Republican Bronze Idol himself, Ronald Reagan, in 1986, and his nomination came shortly after a highly contentious SCotUS confirmation hearing – thus he faced much less scrutiny than many other prospective SCotUS judges have. He has criticized his fellow Supreme Court judges before in highly hyperbolic fashion, calling colleagues who disagree with him “perverse” or “irrational.” He’s also had controversial cases where he’s refused to recuse himself, most notably in a two cases; the Sierra Club vs. a federal fossil fuel task force headed by Dick Cheney, Scalia’s duck-hunting partner, and the now infamous Citizen’s United case where he was a personal guest of billionaire Charles Koch who was a zealous vocal and monetary supporter of Citizen’s United. […]

New York Law School’s legal reporting blog recently published a piece on the law of judge recusal and how it applies to the situation currently facing Justice Thomas (and how the law has influenced past situations as well).

The pursuit of the effort in all its forms and venues should made, regardless of any clear enforceable path. We can not know where it could lead or what positive effect might result. The arguments need to be made, the facts documented and the discussion pursued, all in preparation for an alignment of of the stars that may or may not come.

Well I would suggest anyone who thinks a petition would be good to contact Professor Turley at jturley@law.gwu.edu. He’s the one who could get the ball rolling. And thanks guys for supporting the idea!

Just to add that it would be a really, really sad day if a Supreme Court justice was actually impeached and it went to trial in the Senate: under the supervision of the Chief Justice! Argh. There is just no accountability.

I do agree that a lawyers’ petition would have a limited effect for the reasons you’ve stated, but I still think it would be a good effort and possibly make these rogue justices reconsider their actions, especially if you can get a wide range of academics etc. involved. It would also, for the reasons cited above, that the legal community respects the rule of law and reinforce the need for reform.

As for revising statute: I do understand the rationale for the revisions that now prohibit individuals from bringing complaints against Supreme Court justices–it would open the floodgates to every aggrieved habeas petitioner and would just not be feasible. What I’m not clear on, though, is whether the Committee on Judicial Conduct can, sua sponte or on the basis of the complaint of another judge, begin investigations. This is all I’ve been able to find: http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/jud_conduct_and_disability_procedure.pdf. Does anyone know if the panel itself can take action through some other procedure that would include a complaint about the misconduct of a Supreme? The judiciary is largely self-policing, and apparently their opinions are kept confidential.

I know. I was just trying to encourage Jessica – it isn’t ‘spitting into the wind’ if it impacts the views of Congresspeople (or even ordinary people). I’m on a ‘doing things’ kick right now and Jessica’s comments resonated with me…

Slarts,
I was not trying to dissuade Jessica and others from shining a light on Scalia and Thomas, I just don’t think it alone will impact on them at all. There is a bill being proposed by Rep. Murphy, I think, that will bring the Supreme Court under the same judicial ethics standards as every other judge. I don’t know if that bill makes it through the House, but maybe Jessica’s efforts can convince a few Congresspeople to so-sponsor the bill and help it get passed.

I’ve got to disagree with you – I think Jessica’s effort is both laudable and worthwhile even if it never effects Justices Scalia or Thomas at all. It is important to raise public awareness of the justices’ shameful behavior – even if the justices can’t be made to feel the shame they’ve brought on their offices, the more the legal community and the public in general is aware of it, the less chance there is of it happening in the future.

Jessica,
I applaud your efforts to try to shame Jutice Scalia and Thomsa to follow judicial ethics, but I think you are spitting into the wind. Scalia is in his own world and if he can go on a hunting trip with Dick Cheney who was a litigant in a pending Supreme Court case at the time, he will stop at nothing. Thomas is just a follower who will follow Scalia 98% of the time. If he spoke and asked a question he might embarass himself.

The ego and hubris of Scalia is exactly why I am suggesting legal professionals get together to petition him and Thomas directly to get with it. His greatest interest is the perpetuation of his distorting legal theories (see Lon Hill’s great 1/29 comment above–sums it up). I think he will only be persuaded to get on the right side of ethics when those he perceives to be of a certain intellectual gravitas (i.e., those who appreciate his dogma) stand up and say he’s embarrassing the judicial branch. I am absolutely positive that there are some fair-minded Federalist Society members out there who are also outraged by this, and who would stand up and do the right thing (think Ted Olsen).

As for Thomas–who knows? He hasn’t said a word in court for five years; I know more about his wife at this point than him. His violations are more blatant and technically easier to pin down, but he seems to be just following Scalia’s lead here.

What we are really talking about is ‘guilting’ Thomas and Scalia to reform their oonduct as it relates to their partisan political activities and considerations of recusal as it might apply to conflict of interest or bias. With the history of these two justices available for review, this could lead one to reasonably presume that rather than reform their behavior, pressure from other judges, lawyers and the ABA would be something that merely reinforces their outlook – they seem to revel in and feed off this type of conflict and criticism.

What about their interest in protecting their individual legacy? My personal view is any body of work either has developed was irrevocably befouled as a result of their vote and opinion in Bush vs. Gore – that their votes were nothing short of corruption, as evidenced by their taking opposite positions on the application of the Equal Protection Clause than they each exhibited during the previous ten years. It can be argued they forfeited their judicial legacy with this vote and that any legacy they wish to preserve is merely personal and ideological.

I am not sure what the federal court system or ABA can do to rein in rouge Supreme Court Justices. At some point our government system cannot be governed by failsafe rules and checks and balances. We must at some point and to some degree rely on the character of the men and women who reach these pinnacles of power, who are put forward by other men and women to whom we have given our confidence by voting them into higher office.

You are correct that people shall no longer respect the courts if something is not done. Justice Stevens’ dissent in Bush vs. Gore is telling.

“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Unfortunately Scalia and Thomas did not treat this instance merely as ‘limited to the present circumstances,’ but took the judicial tenor they breathtakingly helped establish in this case as merely the beginning of accelerated and ever more consistent questionable conduct.

Where it ends we cannot know. But with a court of only nine justices, it does not take many bad actors to break an entire branch of our government. And in the process forfeit the trust of the People in this previously (mostly)venerable institution, whose confidence effectively provides its legitimacy.

I entirely agree that Kagan has set an exemplary standard, that necessary for a functional judiciary.

But I doubt that these more nebulous standards (i.e., those subject to interpretation based on case law versus black letter law) can stand in the abstract for post hoc disqualification in Bush v. Gore. That case was already decided, albeit in a partisan manner (read: wrongly).

But it does stand as a cautionary lesson that we all should take into account in terms of the health care debate. We have to mobilize, as law professionals (and those of us who aspire to be) to prevent this sort of thing in the future. I have suggested to Professor Turley that a petition from judges, lawyers, and other members of the ABA would be most persuasive–and is indeed required by the ABA Model Rules and the Code of Judicial Conduct in terms of reporting requirements of suspected impropriety. Those admitted to the bar have a duty to report misconduct in many situations, and even where misconduct is just reasonably suspected, there is a permissive standard by which such conduct can be reported.

If Thomas persists in refusing to disqualify himself, impeachment is unlikely impossible given the current makeup of the House, but he could still be subject to discipline through a board of judges acting sua sponte. It’s a mere hope, but I think there are enough of us out there who can act to persuade the ABA/federal court system to act to prevent impropriety–or the appearance thereof–to be so blatantly espoused.

Point blank: people will no longer respect courts if something is not done, and the future of our democracy will be further undermined.

If the standard is to disqualify oneself “in any proceeding in which one’s impartiality might reasonably be questioned” and “a judge should not take part in any activities that ‘reflect adversely on the judge’s impartiality'” one can argue that these tests have been met for Scalia with regard to connections with Olsen in Bush vs. Gore.

That Kagan has recused herself in many cases perhaps using a standard of ‘appearance of bias or conflict of interest’ just shows how far each sits on opposite ends of the continuum, and the respect and reverence Kagan has for the institution and the system, and conversely the arrogance and disregard of the same by Scalia (and Thomas.)